The Sixth Circuit Keeps Squeezing the NLRB

A federal appeals court just refused to give the National Labor Relations Board a second look at a ruling that guts one of its favorite tools.

The Sixth Circuit declined to rehear, en banc, its decision in Brown-Forman. A divided panel had held in March that the Board could not create its Cemex bargaining-order framework through case-by-case adjudication. It should have used formal notice-and-comment rulemaking.

Cemex is the Biden-era rule that lets the NLRB order an employer to bargain when it commits unfair labor practices after a union demands recognition. Here, the Board imposed such an order on Brown-Forman, maker of delicious Woodford Reserve.

The bigger threat is to how the Board sets policy at all. For decades the NLRB has made nearly all its labor-law standards through individual case decisions, not rulemaking. The Sixth Circuit is challenging that foundation, and it has become an increasingly hostile venue for the agency.

To me, this is the quieter but more consequential story. Cemex may die at the Board anyway. The adjudication-versus-rulemaking fight touches everything the Board does.